Draft public comments on DAGv4 (background checks, MAPO, Independent Objector)

[Alex Gakuru]

KK, all I can say is thanks!

On Wed, Jul 21, 2010 at 5:28 PM, Konstantinos Komaitis <
k.komaitis at strath.ac.uk> wrote:

>  Thanks for this Mary. I also attach the comments I wrote on behalf of
> NCSG for the URS, PDDRP, Trademark Clearinghouse and MAPO. Mary perhaps we
> can compile those comments and send them as one. If you don’t agree with
> what is written, I can post it on my behalf.
>
> Thanks
>
> KK
>
> PS: apologies for the lateness in submitting these.
>
>
>
> Dr. Konstantinos Komaitis,
>
> Law Lecturer,
>
> Director of Postgraduate Instructional Courses
>
> University of Strathclyde,
>
> The Law School,
>
> The Lord Hope Building,
>
> 141 St. James Road,
>
> Glasgow, G4 0LT
>
> UK
>
> tel: +44 (0)141 548 4306
>
>
> http://www.routledgemedia.com/books/The-Current-State-of-Domain-Name-Regulation-isbn9780415477765
>
> Selected publications:
> http://hq.ssrn.com/submissions/MyPapers.cfm?partid=501038
>
> Website: http://domainnamelaw.ning.com/
>
>
>
>
>
> *From:* NCSG-NCUC [mailto:NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU] *On Behalf
> Of *Mary Wong
> *Sent:* Wednesday, July 21, 2010 12:00 PM
> *To:* NCSG-NCUC-DISCUSS at LISTSERV.SYR.EDU
> *Subject:* Draft public comments on DAGv4 (background checks, MAPO,
> Independent Objector)
>
>
>
> Apologies for the last minute circulation of this rather brief draft
> comment - I've not been able to pull together anything better, unfortunately
> :( Since the comment period for DAGv4 closes today, however, I thought I
> should send what little I've got to the list for comments/feedback.
>
>
>
> I've drafted it as a submission from NCSG, but if there are objections or
> concerns from anyone, I'm happy to file it as a personal comment. It can
> also be combined with what Wendy and others have worked on, w.r.t. other
> aspects of DAGv4.
>
>
>
> Here goes -
>
>
>
> "The NCSG wishes to comment on several specific aspects of version 4 of the
> draft Applicant Guidebook; viz., Module 2 (Evaluation Procedures) regarding
> Background Checks, and Module 3 (Dispute Resolution) regarding Morality &
> Public Order objections and the role of the Independent Objector. All page
> and section references are to the redlined version of the draft Applicant
> Guidebook.
>
>
>
> (1) Background Checks (Module 2)
>
>
>
> While it is understandable that a certain level of background check on an
> applicant may be desirable, the current suggestions go beyond what would
> seem to be reasonable and necessary.
>
>
>
> First, the least intrusive check that can be done should be that on the
> applicant itself (i.e. the entity applying for the potential new gTLD), in
> relation to its financial, technical and operational capabilities (in
> keeping with the other requirements of the Guidebook). To the extent
> that this makes it necessary to also conduct a check on the applicant's
> management, this should be limited to officers, directors and majority
> shareholders of the applicant. It is unclear what the word "partners" (pg
> 2-1, Section 2.1) means in this context, as the legal meaning of the word is
> different from the broader, more general meaning in ordinary use.
>
>
>
> Secondly, some of the grounds upon which a background check are to be based
> appear overly vague and/or disproportionate to the objectives of this type
> of background check. For instance, would a check on whether an entity or one
> of its directors engaged in "terrorism" come back positive because that
> entity or person has been charged in one national court with abetment of a
> terrorist act according to just that one country's definition of terrorism?
> Does ICANN limit terrorism to mean constituting a security threat to
> critical Internet infrastructure, and according to whom?
>
>
>
> While the scale of serious matters such as terrorism (however defined) and
> war crimes (another highly-charged phrase) cannot be denied, how would those
> issues affect the deployment of new gTLDs and the operation of the DNS, such
> that it is appropriate for ICANN to deny an application on those grounds?
> One can perhaps agree that a company that has been found to have engaged in
> "corporate fraud and financial regulatory breaches" may not be an
> appropriate new gTLD registry operator, but these are purely financial and
> operational issues that are directly linked to the capacity of a potential
> new gTLD registry operator.
>
>
>
> Thirdly, the question of whether an applicant (or its officers, directors,
> shareholders and partners) engaged in "intellectual property violations" (pg
> 2-2) does not seem to belong in the same category of serious concerns as the
> other grounds listed as subjects of background checks. If ICANN wishes to
> ensure that serial cybersquatters and other, proven cases of abusive
> trademark users will not be allowed to operate a new gTLD, then this
> category ought specifically to be limited to just these particular cases
> (and not, for instance, extended to someone who unknowingly infringed a
> copyright at some point in his life).
>
>
>
> Fourthly, even though the decision whether or not an applicant has passed a
> background check is made on a "case by case basis" (pg 2-2), the draft as it
> stands gives ICANN (and, for that matter, the entity conducting the
> background check) broad discretion to consider many more factors than those
> listed and to make a decision.
>
>
>
> There is also no provision for informing the applicant either that it (or
> one of its officers, directors etc.) has triggered any alarm bells in the
> course of the background check, or even that it has failed because of a
> negative background check. Further, there is no provision for any appeal or
> review of a decision to disallow the application to go further because of a
> failed background check.
>
>
>
> The NCSG recommends that ICANN review the background check provisions. To
> the extent that community feedback indicates that a background check of any
> kind is desirable, we recommend that these be strictly limited to, at most,
> cases of proven financial irregularity or fraud, and possibly clear-cut,
> proven cases of cyber-squatting.
>
>
>
> (2) Morality & Public Order Objections (Module 3)
>
>
>
> Many members of the NCSG continue to oppose the inclusion of a Morality and
> Public Order ("MAPO") objection in the new gTLD process. This objection is
> based on the belief that (a) there are no truly global standards for MAPO;
> (b) the laws, customs and norms of public international law are
> inappropriate and do not fit into a private party transaction (as ICANN's
> dealings with new gTLD registries would be); (c) the existing public
> international law mechanisms for dealing with alleged infractions of
> international treaties that touch on MAPO issues are entirely different in
> objective, operation and effect from the dispute resolution panels
> contemplated by ICANN; and (d) MAPO issues likely fall outside of ICANN's
> mandate.
>
>
>
> NCSG reiterates its call for ICANN to publicly release the research it
> commissioned from the various jurists and international law experts (such as
> were referenced in ICANN's earlier Explanatory Memorandum on MAPO), so that
> the community can openly evaluate the need for a MAPO objection process at
> all as well as the grounds upon which ICANN is currently recommending that
> such a process be based.
>
>
>
> NCSG also calls ICANN's attention to the recent formation of a joint ACSO
> group tasked with discussing the MAPO issues, and recommends that any
> further action on MAPO be taken only with reference to the work to be done
> by that group.
>
>
>
> In the absence of any further information forthcoming regarding ICANN's
> reasons for including the current grounds for MAPO objections
> and consultation with the joint ACSO group, most NCSG members remain opposed
> to the inclusion of any process relating to MAPO objections at all.
>
>
>
> (3) Independent Objector (Module 3)
>
>
>
> NCSG is concerned at the lack of specificity in both versions 3 & 4 of the
> Guidebook concerning the accountability of the Independent Objector ("IO").
> While we favor the concept of such an office, we note that the very freedom
> currently recommended for the IO also means that he/she does not have to act
> in consultation with any community, nor is he/she obliged to receive public
> comments (pg 3-6).
>
>
>
> Further, while the IO is supposed to be an independent contractor to (and
> not a full-time employee of) ICANN, his/her budget will necessarily emanate
> from ICANN. The recommendation that the IO has potentially limitless
> renewable terms (pg 3-6) is therefore a matter of concern.
>
>
>
> In addition, there is no process for any person or community who are
> aggrieved or harmed by the IO's decisions and actions (or inactions, as the
> case may be) to object or appeal. While it is reasonable to believe that a
> responsible IO will not file a trivial or illegitimate complaint, there
> is currently no redress for anyone or any group who believe themselves
> prejudiced by a decision of an IO not to act, especially in cases where a
> particular person or community may, for reasons such as political
> suppression or financing, be unable to raise objections on their own.
>
>
>
> NCSG's concerns about the IO are particularly magnified given the IO's
> mandate to file MAPO objections.
>
>
>
> NCSG recommends that, at the very least, specific provisions relating to an
> appeal and review process for the IO and his/her conduct, as well as either
> non-renewable tenure or a maximum number of terms, be included in the final
> Guidebook.
>
>
>
> Thank you for the opportunity to comment on the latest version of the draft
> Applicant Guidebook. We look forward to an accurate and timely summary and
> analysis of all comments received in this round, and to speedy resolution of
> the issues highlighted through this comment process and period."
>
>
>
>
>
>
>
> *Mary W S Wong*
>
> Professor of Law & Chair, Graduate IP Programs
>
> Franklin Pierce Law Center
>
> Two White Street
>
> Concord, NH 03301
>
> USA
>
> Email: mwong at piercelaw.edu
>
> Phone: 1-603-513-5143
>
> Webpage: http://www.piercelaw.edu/marywong/index.php
>
> Selected writings available on the Social Science Research Network (SSRN)
> at: http://ssrn.com/author=437584
>
>
>
>
> [image: Pierce Law | University of New Hampshire - An Innovative
> Partnership] <http://www.piercelaw.edu/>
>
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